Back to the Middle Ages

The appointment of a president of the Supreme Court or to the Constitutional Court according to seniority is not the norm in democratic societies: certainly not in the United States, which our court looks to as a model.

Let us imagine what would happen if someone proposed that the position of chief of staff go automatically to the person with the most seniority among the Israel Defense Forces generals, and that this individual would serve until age 70. The reasons: experience, continuity, preventing wild competition among the generals and neutralizing the appointment from political pressure and intrigue.

Clearly anyone making such a proposal would not be considered serious. But that is exactly the way the president of the Supreme Court is currently appointed. One does not have to agree with all the of changes Justice Minister Daniel Friedmann is proposing, or to his style, to admit that the method of automatic appointment by seniority is flawed.

The seniority system is not in force today in any profession: ministers, director-generals or generals are not automatically appointed because of their seniority. In the Supreme Court, in contrast, this antiquated remnant of a medieval guild remains in practice. It was once the custom in universities that the senior professor would be appointed chair of the department or institute. A few decades ago younger lecturers at universities brought an end to this medieval, hierarchical system; today, department heads are chosen for limited periods. I have not heard anyone claim that the quality of research or of teaching has dropped as a result. What did happen was the limiting of the almost absolute power of those veteran professors who in the past remained at their posts for decades. Today the system is much more democratic and egalitarian.

The appointment of a president of the Supreme Court or to the Constitutional Court according to seniority is not the norm in democratic societies: certainly not in the United States, which our court looks to as a model. Judges are not always appointed for life to the higher courts: in Germany, for example, they are appointed for limited terms.

Recently in the U.S. the person appointed chief justice of Supreme Court had not even previously been on its bench, but had served as a federal judge in a lower court. His appointment, by U.S. President George W. Bush, according to the Constitution, was approved by the Senate, and even his ideological opponents agreed that he was a quality and high-level figure.

Of all the issues of controversy between the the justice minister and the Supreme Court president, the matter of the automatic appointment by seniority is among the most prominent, because the argument between them is basically one of power, even when wrapped in high and flowery phrases. How does the automatic appointment by seniority ensure the rights of citizens more than nomination by an appointment committee of one kind or another?

In the Israeli context, the Supreme Court president is perhaps the most powerful person in the public system. As opposed to the state president, ministers, directors-generals of ministries and chiefs of staff, this person cannot be removed from his or her position. He or she enjoys, and rightfully so, a great deal of confidence precisely because of his or her independence from political balances of power, changing public moods and mercurial opinion polls. In this context, there is nothing more absurd than appointment by seniority.

When Plato proposed entrusting matters of state to philosopher-guardians, the obvious question was immediately asked: "And who will guard the guardians?" The method of appointing Supreme Court justices can no longer remain a privilege given only to the justices themselves. This is an issue for comprehensive, focused and deep public debate, with a place for pluralism of opinions.

This is not a war between the Children of Light and the Children of Darkness, but rather a legitimate democratic zzdiscourse among the citizens of this country, and not a monopoly given only to a few justices or jurists.

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